Ambev S.A.v.Cervejaria Petropolis SA

Trademark Trial and Appeal Board

Aug 28, 2018

No. 92059437 (T.T.A.B. Aug. 28, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: August 28, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Ambev S.A.
v.
Cervejaria Petropolis SA
_____

Cancellation No. 92059437
_____

Douglas A. Rettew and Morgan E. Smith of Finnegan, Henderson, Farabow, Garrett
& Dunner, L.L.P., for Ambev S.A.

Mary Catherine Merz and Jennifer A. Widmer of Merz & Associates, P.C.,
for Cervejaria Petropolis SA.
_____

Before Bergsman, Wellington and Heasley,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Ambev S.A. (“Petitioner”) filed a petition to cancel the registration of the mark
FUSION (standard characters) for “non-alcoholic beverage ingredients, namely,
effervescent powder to be dissolved in liquid to produce an energy drink and
hypertonic drink,” in Class 32, owned by Cervejaria Petropolis SA (“Respondent”).1
Petitioner alleges that Respondent has abandoned the mark with no intent to resume

1 Registration No. 3788757, registered May 11, 2010; Section 8 declaration accepted.
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use. Respondent, in its Answer, denies the salient allegations in the Petition for
Cancellation.
I. Preliminary Issues
A. Respondent’s objections to Petitioner’s notices of reliance on “2011
Wayback Internet Archive Printouts of bond-labs.com/brands” and
“2011-2015 Wayback Internet Archive Printouts of Registrant’s
websites” at grupopetropolis.com.br.
Petitioner’s third notice of reliance is on “2011 Wayback Internet Archive
printouts of bond-labs.com/brands” (March 10, April 16, June 6, July 17, August 16,
and September 25, 2011)2 and its fourth notice of reliance is on 29 “current Internet
printouts and 2011-2015 Wayback Archive Internet printouts of [Respondent’s]
websites” at grupopetropolis.com.br. 3 Respondent objects to these notices of reliance
on the ground that they were not produced by Petitioner during discovery.4
Respondent’s interrogatory No. 5 requests that Petitioner identify each
investigation it conducted involving Respondent or Respondent’s mark and all
documents relating to those investigations.5 In addition, Respondent’s document
request No. 9 requests documents relating to any investigation about Respondent or
Respondent’s mark.6 In response to Interrogatory No. 5 and document request No. 9,
Petitioner stated that it conducted an investigation in June 2014 and that it would

2 17 TTABVUE.
3 18 TTABVUE.
4 53 TTABVUE 2.
5 53 TTABVUE 3 and 17.
6 53 TTABVUE 3 and 26.
Cancellation No. 92059437
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produce the relevant documents.7 Subsequently, Petitioner produced a copy of the
June 11, 2014 investigation conducted by Robert Jackson & Associates.8 The
investigator wrote that she had reviewed the Grupo Petropolis website at
grupopetropolis.com.br and the Crystal beer website at cervejacrystal.com.br.9 The
report also referred to unidentified websites, “archived pages” for the above-noted
websites, and “various Internet search engines.”10 Finally, during the testimony
deposition of Maxine Kaplan, an investigator at Robert Jackson & Associates, Ms.
Kaplan testified that during her investigation in June 2014, she reviewed the
Wayback Machine for Bond Laboratories, Respondent’s predecessor-in-interest, and
Respondent.11 Petitioner did not supplement its discovery responses to include the
above-identified Wayback Archive Internet printouts. During Petitioner’s testimony
period, Petitioner introduced the Wayback Archive Internet printouts through the
above-noted notices of reliance. Respondent argues that it was prejudiced by
Petitioner’s failure to supplement its discovery responses by providing copies of the
Wayback Archive Internet printouts because Respondent “was unable to question Ms.
Kaplan about the specific searches during Ms. Kaplan’s testimony deposition or

7 53 TTABVUE 3-4, 36-39, and 59-60.
8 53 TTABVUE 4 and 70-71.
9 53 TTABVUE 71.
10 Id.
11 53 TTABVUE 4-5.
Cancellation No. 92059437
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obtain evidence to counter the information in the WAYBACK MACHINE®
searches.”12
In opposition to Respondent’s motion, Petitioner argues that Respondent was not
prejudiced by Petitioner’s failure to produce the Wayback Archive Internet printouts
because they were referred to in the June 2014 report that was produced during
discovery and that the printouts were copies of Respondent’s websites.13 Also,
Petitioner pointed out that the Wayback Archive Internet printouts were not created
until January 2016, after the close of discovery, and in anticipation of trial.14
Respondent’s objection is that it was prejudiced by not having the Wayback
Archive Internet printouts produced earlier in response to its discovery requests.
However, the Wayback Archive Internet printouts were created by Petitioner in
anticipation of its testimony period. Those documents were not in its possession when
Petitioner was responding to written discovery or at any time during the discovery
period. Moreover, Respondent was not put at a disadvantage in preparing its case for
trial because Petitioner’s evidence regarding Respondent’s lack of use should not have
come as a surprise as it has become common practice to introduce Wayback Archive
Internet printouts to show how a party’s website previously looked. Moreover, the
Wayback Archive Internet printouts were equally accessible to Respondent (i.e., they
were publicly available via the Internet) and they were copies of Respondent’s own

12 53 TTABVUE 7.
13 60 TTABVUE 2.
14 Id.
Cancellation No. 92059437
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websites. Finally, Respondent had thirty days between the close of Petitioner’s
testimony period and the opening of its testimony period to prepare any rebuttal
against the evidence from the Wayback Archive Internet printouts. Accordingly,
Respondent’s objection to the Wayback Archive Internet printouts introduced in
Petitioner’s third and fourth notices of reliance on the basis that the documents were
not previously produced in response to Respondent’s discovery requests is overruled.
B. Petitioner’s objection to Respondent’s seventh notice of reliance on
Respondent’s responses to Petitioner’s interrogatories.
Petitioner filed a notice of reliance on Respondent’s responses to Petitioner’s
interrogatory Nos. 3, 10, 12, 13, and 18, including the 2011 assignment of the
registration at issue to Respondent from Bond Laboratories produced in response to
Petitioner’s interrogatory No. 18.15 Subsequently, during Respondent’s testimony
period, Respondent filed a notice of reliance on its responses to Petitioner’s
interrogatory Nos. 1, 5, 7, 8, 9, 11, 14 and 19 and “the relevant documents that were
produced by Respondent in response to these interrogatories.”16 Petitioner objects to
Respondent’s notices of reliance on these interrogatory responses and documents on
the grounds that (i) Respondent’s responses to its own interrogatory answers were
not properly introduced in accordance with Trademark Rule 2.120(k)(5), 37 C.F.R.
§ 2.120(k)(5), (ii) Respondent did not identify any documents responsive to the
interrogatories pursuant to Fed. R. Civ. P. 33(d), (iii) the documents are not

15 19 TTABVUE.
16 32 TTABVUE 1-3.
Cancellation No. 92059437
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Respondent’s business records that could be produced pursuant to Fed. R. Civ. P.
33(d), (iv) the documents have not been authenticated, and (v) the documents are
hearsay.17
Respondent argues to the contrary that it “provided a sufficient explanation in
these Notices of Reliance about why it needed to rely on each of the additional
interrogatory answers and the documents that had been produced in response to
thereto.”18
Respondent’s Notice of Reliance Nos. 7 and 8 seek to
introduce into evidence certain documents Respondent
produced to Petitioner about Respondent’s intent to use
and/or actual use of the FUSION mark; this evidence is
necessary to avoid an unfair interpretation of the limited
number of Respondent’s Interrogatory Responses admitted
into evidence by Petitioner, which seeks to establish that
Respondent has abandoned the FUSION mark with no
intent to resume use.19
Trademark Rule 2.120(k)(5), 37 C.F.R. § 2.120(k)(5), reads follows:
Written disclosures, an answer to an interrogatory, or an
admission to a request for admission, may be submitted
and made part of the record only by the receiving or
inquiring party except that, if fewer than all of the written
disclosures, answers to interrogatories, or fewer than all of
the admissions, are offered in evidence by the receiving or
inquiring party, the disclosing or responding party may
introduce under a notice of reliance any other written
disclosures, answers to interrogatories, or any other
admissions, which should in fairness be considered so as to
make not misleading what was offered by the receiving or
inquiring party. The notice of reliance filed by the
disclosing or responding party must be supported by a
written statement explaining why the disclosing or

17 50 TTABVUE 9-13.
18 52 TTABVUE 9.
19 52 TTABVUE 9.
Cancellation No. 92059437
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responding party needs to rely upon each of the additional
written disclosures or discovery responses listed in the
disclosing or responding party’s notice, and absent such
statement the Board, in its discretion, may refuse to
consider the additional written disclosures or responses.
In other words, the responding party may introduce other answers to interrogatories
to avoid an unfair interpretation of the responses introduced by the inquiring party.
TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) § 704.10
(June 2018); see also Hiraga v. Arena, 90 USPQ2d 1102, 1105 (TTAB 2009) (“if fewer
than all of the answers to a set of interrogatories are offered into evidence by the
inquiring party (petitioner herein), the responding party (respondent herein) may
introduce, under a notice of reliance, any other answers to interrogatories that should
be considered so as to avoid an unfair interpretation of the responses offered for the
record by the inquiring party.”).
The interrogatories on which Petitioner relies refer Respondent’s use of the
FUSION mark. The interrogatories and responses are summarized below:
Interrogatory No. 3 – the dates of use for Respondent’s
mark.
Response – Respondent’s predecessor used the mark for
the identified goods from January 18, 2006 until the mark
was sold to Respondent and Respondent began using the
mark in connection with a pre-mixed energy drink as early
as October 2014.20
Interrogatory No. 10 – the circumstances under which
Respondent has exported or shipped FUSION brand
products into the United States.

20 19 TTABVUE 7.
Cancellation No. 92059437
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Response – Respondent does not export or ship FUSION
products into the United States.21
Interrogatory No. 12 – describe Respondent’s
advertising for its FUSION products.
Response – “At this time [Respondent] does not advertise
or promote its FUSION product in the United States.”22
Interrogatory No. 13 – Respondent’s reason for
discontinuing the sale of “non-alcoholic beverage
ingredients, namely, effervescent powder to be dissolved in
liquid to produce an energy drink and hypertonic drink.”
Response – when Respondent purchased the FUSION
mark, it wanted to sell the related liquid rather than
powder product.23
Interrogatory No. 18 – identify all agreements relating
to Respondent’s FUSION mark.
Response – such documents will be produced.24
Respondent seeks to rely on the additional interrogatory responses summarized
below, including the explanation of why the interrogatory avoids an unfair or
misleading interpretation of another interrogatory answer:
Interrogatory No. 1 – identify all marks that Respondent
has used or registered in the United States with the word
FUSION.
Response - Registration No. 3788757 for the mark at
issue.25
Explanation why this interrogatory avoids an unfair
interpretation of the other interrogatory responses

21 19 TTABVUE 9.
22 19 TTABVUE 10.
23 19 TTABVUE 10.
24 19 TTABVUE 11.
25 32 TTABVUE 12.
Cancellation No. 92059437
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– Respondent does not identify which interrogatory
responses relied upon by Petitioner that this interrogatory
response clarifies. According to Respondent, this
interrogatory response rebuts Petitioner’s notice of
reliance on a different FUSION registration registered by
Respondent’s predecessor.26
Interrogatory No. 5 – identify where Respondent’s
FUSION products have been sold in the United States.
Response – documents responsive to this interrogatory
will be produced.27
Explanation why this interrogatory avoids an unfair
interpretation of the other interrogatory responses
– Respondent does not identify which interrogatory
responses relied upon by Petitioner that this interrogatory
clarifies. Respondent explains that this interrogatory
response refers to Respondent’s use or intent to use the
FUSION mark.28
Interrogatory No. 7 – state the sales figures in units and
dollars for Respondent’s FUSION products in the United
States.
Response – documents responsive to this interrogatory
will be produced.29
Explanation why this interrogatory avoids an unfair
interpretation of the other interrogatory responses
– Respondent does not identify which interrogatory
responses relied upon by Petitioner that this interrogatory
clarifies. Respondent explains that this interrogatory
response refers to Respondent’s use or intent to use the
FUSION mark.30

26 32 TTABVUE 3.
27 32 TTABVUE 13.
28 32 TTABVUE 3.
29 32 TTABVUE 15.
30 32 TTABVUE 3.
Cancellation No. 92059437
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Interrogatory No. 8 – describe whether Respondent has
manufactured FUSION products in the United States.
Response – Respondent’s “pre-mixed energy drink is
being manufactured in the United States by the Drink
Ink.”31
Explanation why this interrogatory avoids an unfair
interpretation of the other interrogatory responses
– Respondent does not identify which interrogatory
responses relied upon by Petitioner that this interrogatory
clarifies. Respondent explains that this interrogatory
response refers to Respondent’s use or intent to use the
FUSION mark.32
Interrogatory No. 9 – describe the circumstances under
which Respondent has sold any FUSION products in the
United States.
Response – Respondent’s predecessor sold FUSION “non-
alcoholic beverage ingredients, namely, effervescent
powder to be dissolved in liquid to produce an energy drink
and hypertonic drink” in the United States since at least as
early as January 18, 2006 and ceased selling it on
November 3, 2011.
“Respondent began selling its FUSION pre-mixed energy
drink in the United States in October 2014.”33
Explanation why this interrogatory avoids an unfair
interpretation of the other interrogatory responses
– Respondent does not identify which interrogatory
responses relied upon by Petitioner that this interrogatory
clarifies. Respondent explains that this interrogatory
response refers to Respondent’s use or intent to use the
FUSION mark.34

31 32 TTABVUE 15.
32 32 TTABVUE 3.
33 32 TTABVUE 15-16.
34 32 TTABVUE 4.
Cancellation No. 92059437
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Interrogatory No. 11 – describe Respondent’s sales of
FUSION products to wholesalers, retailers, distributors, or
other customers in the United States.
Response – Respondent has sold its FUSION pre-mixed
energy drink to its distributor San Diego Cash & Carry
since October 2014.35
Explanation why this interrogatory avoids an unfair
interpretation of the other interrogatory responses
– Respondent does not identify which interrogatory
responses relied upon by Petitioner that this interrogatory
clarifies. Respondent explains that this interrogatory
response refers to Respondent’s use or intent to use the
FUSION mark.36
Interrogatory No. 14 – explain why Respondent has not
abandoned the FUSION mark.
Response – Respondent’s predecessor used the mark.
Respondent is selling FUSION products. Documents
response to this interrogatory will be produced.37
Explanation why this interrogatory avoids an unfair
interpretation of the other interrogatory responses
– Respondent does not identify which interrogatory
responses relied upon by Petitioner that this interrogatory
clarifies. Respondent explains that this interrogatory
response refers to Respondent’s use or intent to use the
FUSION mark.38
Interrogatory No. 19 – with respect to each product sold
under the FUSION mark, identify the period of nonuse and
state the reason for the nonuse.

35 32 TTABVUE 16-17.
36 32 TTABVUE 4.
37 32 TTABVUE 17-18.
38 32 TTABVUE 4.
Cancellation No. 92059437
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Response – Respondent’s predecessor use the FUSION
mark until November 3, 2011 and Respondent used the
FUSION mark in early October 2014.39
Explanation why this interrogatory avoids an unfair
interpretation of the other interrogatory responses
– Respondent does not identify which interrogatory
responses relied upon by Petitioner that this interrogatory
clarifies. Respondent explains that this interrogatory
response refers to Respondent’s use or intent to use the
FUSION mark.40
Respondent sought to introduce the additional discovery responses to show how
Respondent uses the FUSION mark and to rebut the presumption that it abandoned
the use of the FUSION mark with no intent to resume use, rather than clarify the
interrogatory responses on which Petitioner relied. Respondent, in its explanations
as to why the additional interrogatories should be considered, did not identify any
interrogatory responses that needed to be clarified and, thus, Respondent failed to
explain how the additional interrogatories introduced by Respondent clarified the
interrogatory responses on which Petitioner relied. Moreover, Respondent, in its
explanations, stated that it sought to use the additional interrogatory responses to
show how it uses the FUSION mark or that it did not abandon the FUSION mark
with no intent to resume use. Accordingly, Respondent’s notice of reliance on its own
interrogatory responses is not admissible under Trademark Rule 2.120(k)(5).
Petitioner’s objection to Respondent’s seventh notice of reliance is sustained.41

39 32 TTABVUE 19.
40 32 TTABVUE 4.
41 32 TTABVUE.
Cancellation No. 92059437
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C. Petitioner’s objection to Respondent’s eighth notice of reliance on
Respondent’s responses to Petitioner’s interrogatory No. 4.42
The circumstances regarding Respondent’s eighth notice of reliance on
Respondent’s response to Petitioner’s interrogatory No. 4 are different from its
seventh notice of reliance discussed above. In response to Petitioner’s interrogatory
No. 12, Respondent stated that it does not advertise or promote its FUSION product
in the United States. However, in response to Petitioner’s interrogatory No. 4
(identify all the media in which Respondent advertises its FUSION products in the
United States), Respondent produced photographs of the Brazilian race car driver
Tony Kanaan displaying the FUSION mark on his jumpsuit and car at various races
in the United States and, thus, serving to show how Respondent advertises and
promotes its FUSION products in the United States.43 Respondent explains that its
response to Interrogatory No. 4 is necessary to clarify its response to Interrogatory
No. 12.
We find that Respondent’s statement regarding why we should consider
Respondent’s response to Interrogatory No. 4 is sufficient to explain how it clarifies
the extent of Respondent’s advertising and promotion in the United States and
renders Petitioner’s reliance on Respondent’s response to Interrogatory No. 12 not
misleading.
However, Respondent’s response to Interrogatory No. 4 stated that it would
produce documents responsive to this interrogatory without specifically identifying

42 35 TTABVUE.
43 35 TTABVUE 3.
Cancellation No. 92059437
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which documents.44 Petitioner argues that Respondent “did not properly invoke Rule
33(d) during discovery and cannot now claim the documents form part of its
interrogatory responses.”45
Respondent argues that because Fed. R. Civ. P. 33(d) allows a party responding
to an interrogatory to state that documents will be made available from which the
answer may be derived, it is not necessary for the responding party to expressly
identify the responsive documents. In this regard, Respondent produced only 44
documents, so the number of documents was not so voluminous that Petitioner could
not readily ascertain the relevance of the documents.46
Rule 33(d) of the Federal Rules of Civil Procedure provides the following:
(d) OPTION TO PRODUCE BUSINESS RECORDS. If the answer
to an interrogatory may be determined by examining,
auditing, compiling, abstracting, or summarizing a party’s
business records (including electronically stored
information), and if the burden of deriving or ascertaining
the answer will be substantially the same for either party,
the responding party may answer by:
(1) specifying the records that must be reviewed, in
sufficient detail to enable the interrogating party to locate
and identify them as readily as the responding party could;
and
(2) giving the interrogating party a reasonable opportunity
to examine and audit the records and to make copies,
compilations, abstracts, or summaries.

44 35 TTABVUE 11.
45 50 TTABVUE 10.
46 52 TTABVUE 10.
Cancellation No. 92059437
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Respondent has not met the prerequisites for allowing a party to invoke Rule 33(d)
in lieu of providing a written answer to the interrogatory, Jain v. Ramparts, Inc., 49
USPQ2d 1429, 1433 (TTAB 1998). Nevertheless, we are persuaded that its failure to
comply with the letter of the Rules was harmless, because Respondent produced only
44 documents, Petitioner was not unduly burdened reviewing the documents, the
relevance of the documents was readily apparent, and Petitioner was not surprised
that the documents at issue show how Respondent advertises and markets its
FUSION product. Accordingly, Petitioner’s objection to Respondent’s eighth notice of
reliance is overruled.47
D. Numerous objections by both parties.
In addition to the above-identified objections, both parties have lodged numerous
other objections. None of the evidence sought to be excluded is outcome
determinative. Moreover, the Board is capable of weighing the relevance and strength
or weakness of the objected to testimony and evidence, including any inherent
limitations. As necessary and appropriate, we will point out any limitations in the
evidence or otherwise note that the evidence cannot be relied upon in the manner
sought. In doing so, we have kept in mind the various objections raised by the parties
and we have accorded whatever probative value the subject testimony and evidence
merit. See Luxco, Inc. v. Consejo Regulador del Tequila, A.C., 121 USPQ2d 1477, 1479
(TTAB 2017).

47 35 TTABVUE.
Cancellation No. 92059437
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E. Illegible exhibits
Numerous evidentiary exhibits are partially illegible. It is the responsibility of
the party making submissions to the Board via the electronic database to ensure that
the evidence has, in fact, been properly made of record. Trademark Rule 2.126(a)(2),
37 C.F.R. § 2.126(a)(2) (“Exhibits pertaining to an electronic submission must be
made electronically as an attachment to the submission and must be clear and
legible.”). See Weider Publ’ns, LLC v. D&D Beauty Care Co., 109 USPQ2d 1347, 1350-
51 (TTAB 2014); Alcatraz Media, Inc. v. Chesapeake Marine Tours Inc. dba
Watermark Cruises, 107 USPQ2d 170, 1758 n.16 (TTAB 2013), aff’d mem., 565 Fed.
Appx. 900 (Fed. Cir. 2014) (“the onus is on the party making the submissions to
ensure that, at a minimum, all materials are clearly readable by the adverse party
and the Board”); Hard Rock Cafe Licensing Corp. v. Elsea, 48 USPQ2d 1400, 1404
(TTAB 1998) (“It is reasonable to assume that it is opposer’s responsibility to review
the documents it submits as evidence to ensure that such submissions meet certain
basic requirements, such as that they are legible and identified as to source and
date.”). We have given illegible evidence probative value to the extent that we can
read and understand what it says.

Cancellation No. 92059437
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II. The Record
The record includes the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), Respondent’s registration file.48 The parties introduced the
testimony and evidence listed below:
A. Petitioner’s testimony and evidence
1. A notice of reliance on the following items:

a. Copy of the file history for Petitioner’s application Serial No.
86276294 for the mark FUSION ENERGY DRINK and design for
“preparations for making beverages; non-alcoholic beverages;
syrup for soft drinks; mineral water; drinking water; beer; non-
alcoholic juice-based fruit beverages; energy drinks,” in Class 32,
printed from the USPTO electronic database;49

b. Copy of the file history for Petitioner’s application Serial No.
86370771 for the mark FUSION ENERGY DRINK and design for
“aerated water; mineral water; preparations for making beverages,
namely energy drinks; non-alcoholic beverages, namely, energy
drinks; beer; non-alcoholic fruit based drinks; fruit juices; non-
alcoholic energy drinks; soft drinks, namely, sodas; syrups for
making soft drinks,” in Class 32, printed from the USPTO
electronic database;50

2. Notice of reliance on Bond Laboratories, Inc.’s (Respondent’s
predecessor-in-interest) Quarterly Report Pursuant to Section to 13 or

48 Because Respondent’s registration file is of record by operation of Trademark Rule 2.122(b),
it was not necessary for Petitioner to file a notice of reliance on the specimens of use Bond
Laboratories, Inc. filed in connection with the prosecution of the application which matured
into the registration at issue. See 22 TTABVUE.
49 15 TTABVUE 6.
50 15 TTABVUE 66.
Cancellation No. 92059437
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15(d) of the Securities Exchange Act of 1934 for the quarterly period
ended June 30, 2011;51
3. Notice of reliance on “2011 Wayback Internet Archive printouts of
bond-labs.com/brands” (March 10, April 16, June 6, July 17, August
16, and September 25, 2011);52
4. Notice of reliance on 29 “current Internet printouts and 2011-2015
Wayback Archive Internet printouts of [Respondent’s] websites” at
grupopetropolis.com.br; 53
5. Notice of Reliance on Respondent’s responses to Petitioner’s
interrogatory Nos. 3, 10, 12, 13, and 18, including the 2011 assignment
of the registration at issue to Respondent from Bond Laboratories
produced in response to Petitioner’s interrogatory No. 18;54
6. Notice of reliance on a copy of Registration No. 3796825 for the mark
FUSION PREMIUM ENERGY for, inter alia, “beverages, namely,
sports drinks and energy drinks,” in Class 32, owned by Bond
Laboratories, Inc., printed from the USPTO electronic database;55

51 16 TTABVUE.
52 17 TTABVUE.
53 18 TTABVUE.
54 19 TTABVUE.
55 20 TTABVUE.
Cancellation No. 92059437
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7. Notice of reliance on Respondent’s request for production of
documents No. 8 stating that no documents exist;56
8. Notice of reliance on Internet printouts from the Food and Drug
Administration’s website at fda.gov;57 and
9. Testimony deposition of Maxine Kaplan, a private investigator
employed by Robert Jackson and Associates, a private investigation
firm specializing in intellectual property.58
B. Respondent’s testimony and evidence.
1. Notice of reliance on Internet website eatbydate.com;59
2. Notice of reliance on Bond Laboratories, Inc.’s Quarterly Report
Pursuant to Section to 13 or 15(d) of the Securities Exchange Act of
1934 for the years ending December 31, 2011 and December 31,
2012:60
3. Notice of reliance on copies of the grupopetropolis.com/br and
tntenergydrink.com/br websites;61

56 21 TTABVUE.
57 23 TTABVUE.
58 36 TTABVUE.
59 26 TTABVUE.
60 27 TTABVUE; see also 42 TTABVUE.
61 28 TTABVUE.
Cancellation No. 92059437
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4. Notice of reliance on Wayback Archive Internet printouts purportedly
showing how Respondent markets its TNT, IRONAGE and
MAGNETO energy drinks;62
5. Notice of reliance on Internet evidence purportedly showing how
Respondent markets energy drinks;63
6. Notice of reliance on copies of Respondent’s Registration No. 3152949
for the mark TNT LIQUID DYNAMITE ENERGY DRINK TAURINE
CAFFEINE and design and Registration No. 4496872 for the mark
TNT, both for “energy drinks,” in Class 32, printed from the USPTO
electronic database;64 and
7. Notice of reliance on Respondent’s response to Petitioner’s
interrogatory No. 465 and Internet evidence purportedly showing
Respondent’s mark promoted at car racing events in the United
States.66
III. Standing
A threshold issue in every inter partes case is the plaintiff's standing to challenge
registration. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111
USPQ2d 1058, 1062 (Fed. Cir. 2014); John W. Carson Found. v. Toilets.com Inc., 94

62 29 TTABVUE.
63 30 TTABVUE.
64 31 TTABVUE.
65 35 TTABVUE 9-17.
66 35 TTABVUE 19-50.
Cancellation No. 92059437
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USPQ2d 1942, 1945 (TTAB 2010). To establish its standing, Petitioner must prove
that it has a “real interest,” i.e., a “reasonable” basis for its belief of damage. See
Empresa Cubana, 111 USPQ2d at 1062; Ritchie v. Simpson, 170 F.3rd 1092, 50
USPQ2d 1023, 1025 (Fed. Cir. 1999); Lipton Indus., Inc. v. Ralston Purina Co., 670
F.2d 1024, 213 USPQ 185, 189 (TTAB 1982). Petitioner has adequately established a
real interest in this proceeding through its evidence that it filed two trademark
applications with the USPTO for FUSION ENERGY DRINK and designs for, inter
alia, energy drinks and that the USPTO issued refusals to register the applications
based on likelihood of confusion with Respondent’s registration under Section 2(d) of
the Trademark Act, 15 U.S.C. § 1052(d).67 See SaddleSprings Inc. v. Mad Croc Brands
Inc., 104 USPQ2d 1948, 1950 (TTAB 2012) (standing supported by allegation that
petitioner’s intent-to-use application has been refused based on respondent’s
registrations); ShutEmDown Sports Inc. v. Lacy, 102 USPQ2d 1036, 1043 (TTAB
2012) (standing shown by evidence that plaintiff’s application was refused
registration in view of defendant’s registration); Fiat Grp. Autos. S.p.A. v. ISM Inc.,
94 USPQ2d 1111, 1112 (TTAB 2010) (the filing of opposer’s application and the
Office’s action taken in regard to that application provide opposer with a basis for
pleading its standing). Respondent, in its brief, does not challenge Petitioner’s
standing.
We find that Petitioner has established its standing to bring the petition for
cancellation.

67 15 TTABVUE 44 and 90.
Cancellation No. 92059437
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IV. Abandonment
A. Statement of the Law
The Trademark Act provides for the cancellation of a registration if the registered
mark has been abandoned. See Section 14 of the Trademark Act, 15 U.S.C. §1064(3).
Under Section 45 of the Trademark Act, 15 U.S.C. §1127, a mark is considered
abandoned when “its use has been discontinued with intent not to resume such use.”
The definition of abandonment is found in this provision, as follows:
A mark shall be deemed to be “abandoned” if either of the
following occurs:
(1) When its use has been discontinued with intent not to
resume such use. Intent not to resume may be inferred
from circumstances. Nonuse for 3 consecutive years
shall be prima facie evidence of abandonment. “Use” of
a mark means the bona fide use of such mark made in
the ordinary course of trade, and not made merely to
reserve a right in a mark.
…
15 U.S.C. §1127.

Because registrations are presumed valid under the law, the party seeking their
cancellation bears the burden of proving a prima facie case of abandonment by a
preponderance of the evidence. See On-Line Careline Inc. v. Am. Online Inc., 229 F.3d
1080, 56 USPQ2d 1471, 1476 (Fed. Cir. 2000); Cerveceria Centroamericana S.A. v.
Cerveceria India Inc., 892 F.2d 1021, 13 USPQ2d 1307, 1309 (Fed. Cir. 1989); Exec.
Coach Builders, Inc. v. SPV Coach Co., 123 USPQ2d 1175, 1180-81 (TTAB 2016). If
the petitioner presents a prima facie case of abandonment, the burden of production
Cancellation No. 92059437
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(i.e., going forward), then shifts to the trademark holder to rebut the prima facie
showing with evidence. Cerveceria Centroamericana, 13 USPQ2d at 1311.
Abandonment is a question of fact. See Stock Pot Rest., Inc. v. Stockpot, Inc., 737
F.2d 1576, 222 USPQ 665, 667 (Fed. Cir. 1984). Thus, any inference of abandonment
must be based on proven fact. Section 45 of the Trademark Act. See also Cerveceria
Centroamericana S.A. v. Cerveceria India Inc., 13 USPQ2d at 1310 (“The protection
due the registrant is provided by requiring that the inference have an adequate
foundation in proven fact. Whenever an inference is based on pure speculation and
‘there is no basis … to infer nonuse,’ a prima facie case of abandonment must fail.”)
(quoting P.A.B. Produits et Appareils de Beaute v. Satinine Societa in Nome Collettivo
di S.A. e. M. Usellini, 570 F.2d 328, 332-33, 196 USPQ 801, 804-05 (CCPA 1978));
Stetson v. Howard D. Wolf & Assoc’s, 955 F.2d 847, 21 USPQ2d 1783, 1785 (2d Cir.
1992) (A party claiming that a mark has been abandoned must show “non-use of the
mark by the legal owner and no intent by that person or entity to resume use.”).
Proof of non-use for three consecutive years, however, constitutes prima facie
evidence of abandonment, because it supports an inference of a lack of intent to
resume use. Section 45 of the Trademark Act. See also Yazhong Investing Ltd. v.
Multi-Media Tech. Ventures, Ltd., 126 USPQ2d 1526, 1533 (TTAB 2018); On-line
Careline Inc. v. Am. Online Inc., 56 USPQ2d at 1476 (“The party seeking cancellation
establishes a prima facie case of abandonment by showing proof of nonuse for three
consecutive years.”); Emergency One, Inc. v. Am. FireEagle, Ltd., 228 F.3d 531,
56 USPQ2d 1343 (4th Cir. 2000). As noted above, if the plaintiff establishes non-use
Cancellation No. 92059437
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for three consecutive years, the burden shifts to defendant to rebut the prima facie
case by either disproving the three years of nonuse or showing an intent to resume
use. Cerveceria Centroamericana, 13 USPQ2d at 1312.
B. Evidence of Abandonment
Petitioner introduced the evidence and testimony listed below to show that
Respondent stopped using the mark FUSION for “non-alcoholic beverage ingredients,
namely, effervescent powder to be dissolved in liquid to produce an energy drink and
hypertonic drink” for three consecutive years:
• Bond Laboratories, Inc.’s, Petitioner’s predecessor-in-interest, Form 10-Q
filed with the U.S. Securities and Exchange Commission for the quarter
ending June 30, 2011.68 Bond Laboratories reported that its gross margins
for the period ending June 30, 2011 increased from the report ending June
30, 2010 based on the company’s decision to discontinue sales of products
at the Fusion Premium Beverage division.69
• Copies of six excerpts from the Bond Laboratories website (bond-
labs.com/brands) printed from the Wayback Internet Archive website for
March 10, 2011, April 16, 2011, June 6, 2011, July 17, 2011, August 17,

68 16 TTABVUE 6.
69 16 TTABVUE 25. To show that Bond Laboratories had not stopped using the FUSION
mark as of June 30, 2011, Respondent introduced Bond Laboratories’ Form 10-Q for the year
ending December 31, 2011 in which Bond Laboratories stated that its revenues increased for
over the years ending December 31, 2011 and 2010 “attributable the Company’s Fusion
Premium Beverages Division, which the Company discontinued as of December 31, 2011.”
(27 TTABVUE 26); see also Bond Laboratories Form 10-Q for the year ending December 31,
2012 attributing $0 for the cost goods sold attributable to the Fusion Premium Beverages
Division in 2012 (27 TTABVUE 78).
Cancellation No. 92059437
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2011, and September 25, 2011. The copy of the March 10, 2011 website was
the only version of the Bond Laboratories websites that referred to FUSION
products.70
• Copies of 29 excerpts from Respondent’s grupopetropolis.com.br website
from December 26, 2011 through January 26, 2016 printed the Wayback
Internet Archive website.71 The websites do not refer to any FUSION
products or to the FUSION mark.
• In response to Petitioner’s interrogatory No. 3, Respondent stated that
Bond Laboratories used FUSION to identify “effervescent powder to be
dissolved in liquid to produce an energy drink and hypertonic drink” from
January 18, 2006 “until about the time the mark was sold to
[Respondent].”72 Bond Laboratories transferred the FUSION mark and
registration to Respondent on October 27, 2011.73 Respondent also stated
that at least as early as October 2014, Respondent began using FUSION to
identify a pre-mixed energy drink.74 However, that portion of the
interrogatory response regarding when Respondent resumed use of
FUSION is not corroborated by any other testimony or evidence. A party’s
response to an interrogatory is not without evidentiary value, but generally

70 17 TTABVUE.
71 18 TTABVUE.
72 19 TTABVUE 7-8.
73 19 TTABVUE 19. The “Trademark Rights Purchase Agreement” between Bond
Laboratories and Respondent was signed November 3, 2011. (19 TTABVUE 20).
74 19 TTABVUE 8.
Cancellation No. 92059437
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is viewed as “self-serving.” General Electric Co. v. Graham Magnetics Inc.,
197 USPQ 690, 692 n.5 (TTAB 1977) (citing Grace & Co. v. City of Los
Angeles, 278 F.2d 771, 776 (9th Cir. 1960)); Beecham Inc. v. Helene Curtis
Industries, Inc., 189 USPQ 647 (TTAB 1976) (ordinarily a party may not
rely upon his own answers to his adversary's interrogatories since said
answers would be self-serving in character). The trier of fact has discretion
to decide what weight to give to an interrogatory response. ShutEmDown
Sports Inc. v. Lacy, 102 UPSQ2d 1036, 1043 (TTAB 2012); see also Marcoin,
Inc. v. Edwin K. Williams & Co., Inc., 605 F.2d 1325, 1328, 28 Fed. R. Serv.
2d 157 (4th Cir. 1979) (trier of fact has discretion as to weight to give to an
interrogatory response). Once in the record, a party may properly argue the
probative effect of such evidence. See Safer Inc. v. OMS Investments Inc.,
94 USPQ2d 1031, 1040 (TTAB 2010); Beecham Inc., 189 USPQ at 647.
When we consider the testimony and evidence introduced by both parties
in their entirety, we find that Respondent’s contention that it began using
FUSION for energy drinks at least as early as October 2104 is not
persuasive.
• In response to Petitioner’s interrogatory No. 10, Respondent stated that “it
does not export or ship any FUSION products into the U.S.”75

75 19 TTABVUE 9.
Cancellation No. 92059437
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• In response to Petitioner’s interrogatory No. 12, Respondent stated that
“[a]t this time [May 1, 2015] [Respondent] does not advertise or promote its
FUSION product in the United States.”76
• In response to Petitioner’s interrogatory No. 13 [reasons for discontinuing
the sale of FUSION “effervescent powder to be dissolved in liquid to produce
an energy drink and hypertonic drink”], Respondent stated that “at the
time it purchased the mark [October 27, 2011] it wanted to sell the related
liquid rather than powder product.”77
• Respondent stated that there are no documents responsive to Petitioner’s
request for production of documents No. 8 [documents identifying all
Internet websites and blogs owned or operated by or on behalf of
Respondent that display or refer to Respondent’s FUSION mark and
products].78
• Maxine Kaplan, an investigator for Robert Jackson & Associates, a private
investigation firm specializing in intellectual property investigations,
testified that she found no evidence of any use of FUSION.
Q. Did your 2014 investigation reveal any Fusion
branded energy drinks at all?
A. None.
Q. Did your investigation reveal any Fusion branded
powders that would be used to make drinks?

76 19 TTABVUE 10.
77 19 TTABVUE 10.
78 21 TTABVUE 8.
Cancellation No. 92059437
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A. I did not find any reference to any Petropolis Fusion
energy drinks or powders, or Bond Fusion products,
energy drinks or powders.
Q. Okay. Did you find any evidence in your
investigation that would indicate or suggest that
either Bond or Petropolis had some intent to use
Fusion on energy drinks, powders, or any other
products?
A. No.79
Petitioner has established a prima facie case of abandonment based on at least
three consecutive years nonuse from October 27, 2011. Respondent has not resumed
use of the mark FUSION in connection with “effervescent powder to be dissolved in
liquid to produce an energy drink and hypertonic drink.” Respondent purportedly
began using FUSION in connection with a pre-mixed energy drink in October 2014;
but, as noted above, we do not find that October 2014 to be persuasive.
Respondent and its predecessor-in-interest stopped using FUSION in connection
with “effervescent powder to be dissolved in liquid to produce an energy drink and
hypertonic drink” on October 27, 2011 and did not resume use of the mark in
connection with those products for at least three years immediately following that
date. By statute, we can thus draw the presumption that Respondent has no intent
to resume use of the mark on the goods. Thus, the burden of going forward and
rebutting the prima facie showing, with evidence, shifts to Respondent.80 Societe Des

79 Kaplan Testimony Dep., p. 23:4-17 (36 TTABVUE 26).
80 As discussed below, because there has been more than three years of nonuse with no
evidence of any intent to resume use, we do not need to determine whether consumers will
believe that FUSION energy drinks emanate from the same source as FUSION “non-alcoholic
beverage ingredients, namely, effervescent powder to be dissolved in liquid to produce an
energy drink and hypertonic drink.”
Cancellation No. 92059437
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Produits Marnier Lapostolle v. Distillerie Moccia S.R.L., 10 USPQ2d 1241, 1244
(TTAB 1989) (evidence of non-use (for two years then) sufficient to shift the burden
to respondent to rebut inference of abandonment).
C. Respondent’s intent not to resume use
Respondent introduced the evidence listed below in an effort to show that it did
not abandon the FUSION mark:
• Copies of the grupopetropolis.com/br and tntenergydrink.com websites
showing Respondent advertising and promoting its TNT energy drink since
early 2009.81 According to Respondent,
This evidence is relevant to show that Respondent’s
purchase of the FUSION mark, U.S. Registration No.
3788757, from the prior owner is consistent with an
extension of its current energy product line. Additionally,
this evidence demonstrates that Respondent has had the
capacity to market and manufacture the goods identified in
Registration No. 3788757 since it purchased the mark.82
There are two problems with this evidence. First, without any supporting
testimony, it is not clear that Respondent actively advertises, promotes or
sells TNT energy drink in the United States. Second, without any
supporting testimony or evidence, it is not clear how Respondent’s
acquisition of FUSION for “non-alcoholic beverage ingredients, namely,
effervescent powder to be dissolved in liquid to produce an energy drink and
hypertonic drink” is an extension of its energy product line.

81 28 TTABVUE.
82 28 TTABVUE 2-3.
Cancellation No. 92059437
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• Copies of Respondent’s websites between 2011 and 2015 printed from the
Wayback Machine Internet Archive website showing how Respondent has
marketed its TNT, IRONAGE and MAGNETO energy drink products.83
Respondent asserts that these websites show that its purchase of the
FUSION mark and registration for “effervescent powder to be dissolved in
liquid to produce an energy drink and hypertonic drink” is an extension of
its energy product line and that Respondent has the capacity to
manufacture an “effervescent powder to be dissolved in liquid to produce an
energy drink and hypertonic drink.”84 Without any supporting testimony or
evidence, it is not clear how Respondent’s acquisition of FUSION for “non-
alcoholic beverage ingredients, namely, effervescent powder to be dissolved
in liquid to produce an energy drink and hypertonic drink” is an extension
of its energy product line and it does not support Respondent’s contention
that Respondent has the capacity to manufacture such a product.
• Copies of websites “available to the public on April 5, 2016.”85 According to
Respondent,
[T]his Internet evidence show[s] that Respondent is a
recognized participant in the energy drink market, that its
products are available outside of Brazil and that its TNT
energy drink has been a sponsor of Scuderia Ferrari since
2012. This evidence is relevant to demonstrate that
Respondent has had the capacity to market and

83 29 TTABVUE.
84 29 TTABVUE 2-3.
85 30 TTABVUE 1.
Cancellation No. 92059437
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manufacture the goods identified in Registration No.
3788757 since it purchased the FUSION mark.86
Because Internet evidence is admissible only to show what has been
printed, not the truth of the matter asserted, Respondent’s websites do
show that its products are available outside of Brazil, or anywhere. See
Safer Inc. v. OMS Investments Inc., 94 USPQ2d 1031, 1040 (TTAB 2010).
Also, this evidence does not prove that Respondent has the capacity to
market and manufacture “non-alcoholic beverage ingredients, namely,
effervescent powder to be dissolved in liquid to produce an energy drink and
hypertonic drink.”
• Copies of Registration No. 3152949 for the mark TNT LIQUID DYNAMITE
and design87 and Registration No. 4496872 for the mark TNT both for
energy drinks.88 According to Respondent, these registrations show that
Respondent has been selling its TNT energy drink in the United States and
that it has the capacity to market and manufacture “effervescent powder to
be dissolved in liquid to produce an energy drink and hypertonic drink.89
However, absent evidence of use, registrations are not evidence that the
marks are in use or that the public has become familiar with them. Cf.
Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 463

86 Id.
87 31 TTABVUE 5.
88 31 TTABVUE 10.
89 31 TTABVUE 1.
Cancellation No. 92059437
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(CCPA 1973) (the purchasing public is not aware of registrations reposing
in the U.S. Patent and Trademark Office); AMF Inc. v. Am. Leisure Prods.,
Inc., 474 F.2d 1403, 177 USPQ 268, 169 (CCPA 1973) (third-party
registrations are not evidence of what happens in the marketplace or that
customers are familiar with them); Lilly Pulitzer, Inc. v. Lilli Ann Corp.,
376 F.2d 324, 153 USPQ 406, 407 (CCPA 1967) (“the existence of these
registrations is not evidence of what happens in the market place or that
customers are familiar with their use.”); In re Morinaga Nyugyo Kabushiki
Kaisha, 120 USPQ2d 1738, 1745 (TTAB 2016) (“third-party registrations
standing alone, are not evidence that the registered marks are in use on a
commercial scale, let alone that consumers have become so accustomed to
seeing them in the marketplace that they have learned to distinguish
among them by minor differences.”). Also, registrations for “energy drinks”
do not prove that the owner thereof has the capacity to market and
manufacture “effervescent powder to be dissolved in liquid to produce an
energy drink and hypertonic drink.”
• Photographs responsive to Petitioner’s interrogatory No. 4 of Tony
Kanaan’s race car, jumpsuit, and specifications for a race car.90 According
to Respondent, these photographs are evidence of how Respondent
advertises and markets it FUSION products in the United States.91 The

90 35 TTABVUE 13-17.
91 35 TTABVUE 3.
Cancellation No. 92059437
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photograph of the race car does not display the FUSION mark. While the
FUSION mark is displayed on the right elbow of the jumpsuit, the
photograph is not dated so it is inconclusive when it was worn. Likewise,
the specification for the race car is not dated and there is no evidence or
testimony that the design was transferred to a race car. In any event, there
is no testimony or evidence regarding what the FUSION mark on the
jumpsuit or racecar identifies.
• Internet evidence purportedly showing how Tony Kanaan has advertised
and promoted FUSION products.92 The websites listed below were relevant:
i. TheApexRacing.com website posts an article on July 15, 2015
entitled “Tony Kannan’s New Look for the Iowa Corn 300” with a
photograph of his racecar displaying the FUSION mark.93
ii. The images.search.yahoo.com website, features a photograph of Tony
Kanaan in his jumpsuit displaying the FUSION mark. The webpage
is dated April 2016.94 There is no testimony or evidence regarding
what the FUSION mark on the jumpsuit identifies.
iii. PatrickMcMullan.com website has webpage for the Iowa Corn Indy
300 advertising that “FUSION energy drink hosts VIP event at Iowa
Corn Indy 300” on July 18, 2015.95

92 35 TTABVUE 19-50.
93 35 TTABVUE 38.
94 35 TTABVUE 42. The webpage URL and date are partially illegible.
95 35 TTABVUE 44.
Cancellation No. 92059437
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iv. Facebook page for the IOWA 2015 featuring photographs of Tony
Kanaan in his jumpsuit and on his racecar displaying the FUSION
mark.96 There is no testimony or evidence regarding what the
FUSION mark on the jumpsuit identifies.
The problem with these websites is that there is no indication as to what
FUSION identifies and distinguishes. Moreover, the earliest date that we
can distinguish from these photographs is July 15, 2015 which is more than
three years after Respondent stopped using the mark (October 27, 2011).
While we have pointed out problems minimizing the probative value of
Respondent’s evidence, assuming arguendo that the evidence is as probative as
Respondent asserts, Respondent has shown the following:
• Respondent’s use of FUSION for energy drinks beginning on July 15, 2015
at the Iowa Corn Indy 300 race; and
• Respondent’s capability of manufacturing and marketing energy drinks.
Even if we accepted December 31, 2011 from Bond Laboratories’ SEC Form 10-Q as
the last day it used FUSION for “non-alcoholic beverage ingredients, namely,
effervescent powder to be dissolved in liquid to produce an energy drink and
hypertonic drink,” there is still more than three years of nonuse (December 31, 2011
through July 15, 2015). Moreover, there is not a scintilla of evidence or testimony
regarding Respondent’s intent to use FUSION during that period of nonuse.
Respondent has not even adduced an admissible statement regarding its intent to

96 35 TTABVUE 46.
Cancellation No. 92059437
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resume or commence use in the United States during the period of nonuse. Moreover,
Respondent’s use of the mark as of July 15, 2015, after three consecutive years of
nonuse, does not cure the abandonment. See Lesley Hornby v. TJX Cos., Inc.,
87 USPQ2d 1411, 1422 (TTAB 2008) (sales made after a mark had been abandoned
“would not retroactively cure her past abandonment.”); Stromgren Supports Inc. v.
Bike Athletic Co., 43 USPQ2d 1100, 1112 (TTAB 1997) (evidence of intent to resume
use which occurred after abandonment is evidence of a new use which does not cure
the abandonment) (citing Cerveceria Centroamericana, 13 USPQ2d at 1312-13
(evidence of nonuse between 1977 and 1984 is not rebutted by evidence of an intent
to resume use after 1984)).
It appears that Respondent’s theory of the case is that because it acquired the
FUSION mark for “non-alcoholic beverage ingredients, namely, effervescent powder
to be dissolved in liquid to produce an energy drink and hypertonic drink,” and
because it markets energy drinks under other marks, Respondent ipso facto intended
to resume use of FUSION in connection with energy drinks. However, merely because
a party used a mark in the past “and it could use the mark in the future is not
sufficient to avoid abandonment.” Lesley Hornby, 87 USPQ2d at 1422. Thus, as best
one can determine from the record evidence, Respondent has not engaged in the type
of activity necessary to resume its use of FUSION in connection with “non-alcoholic
beverage ingredients, namely, effervescent powder to be dissolved in liquid to produce
an energy drink and hypertonic drink.” See Volkswagewerk Aktiengesellschaft v.
Advance Welding and Mfg. Corp., 193 USPQ 673, 676-77 (TTAB 1976) (because
Cancellation No. 92059437
- 36 -
respondent failed to take meaningful steps to raise the capital necessary to
manufacture the products, respondent was unable to show an intent not to abandon
its mark); Hamilton Burr Publ’g Co. v. E. W. Commc’n, Inc., 216 USPQ 802, 807
(TTAB 1982) (where reuse of the mark is speculative, defendant failed to rebut the
presumption of an intent not to resume use).
Accordingly, we find that Respondent abandoned its mark because there was
nonuse from at least December 31, 2011 through July 15, 2015 with intent not to
resume use.
Decision: The petition to cancel Registration No. 3788757 for the mark FUSION
is granted.